93 Decision Citation: BVA 93-02338
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-11 240 ) DATE
)
)
)
THE ISSUES
Entitlement to an increased evaluation for spinal stenosis
L4-L5, post surgery, currently rated 40 percent disabling.
Entitlement to an increased (compensable) evaluation for
right heel fracture residuals.
Entitlement to an increased (compensable) evaluation for
right lateral epicondylitis and elbow spur.
REPRESENTATION
Appellant represented by: Department of Veterans Service,
Georgia
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P. Gutstein, Counsel
INTRODUCTION
The veteran, who is the appellant, had active service from
January 1981 to September 1988. By rating action of
December 1988, the Department of Veterans Affairs (VA)
Atlanta, Georgia Regional Office (RO) granted service
connection for spinal stenosis L4-5 post surgery, and
assigned a 20 percent evaluation, effective from October 1,
1988; and established service connection and assigned
noncompensable evaluations for right heel fracture residuals
and for right lateral epicondylitis and elbow spur. The
veteran filed a notice of disagreement on March 3, 1989. He
was furnished a statement of the case on June 14, 1989. He
filed a substantive appeal on July 14, 1989. He was
afforded a hearing at the RO on December 20, 1989. The
hearing officer rendered a decision on August 6, 1990. The
veteran was furnished a supplemental statement of the case
on October 1, 1990. His representative submitted a written
argument in his behalf on January 24, 1991. The records
were initially received by the Board on February 5, 1991,
and the case was docketed on February 7, 1991. The Board
remanded the case on March 18, 1991. By rating action of
November 1991, the RO increased the evaluation for spinal
stenosis L4-5, postoperative, from 20 percent to 40 percent
disabling, effective from October 1, 1988. The
noncompensable evaluations for the other service-connected
disabilities at issue were continued. The veteran was
furnished supplemental statements of the case on November 7,
1991, and April 7, 1992. The veteran's representative
submitted an additional written argument on September 30,
1992. The records were returned to the Board on November 3,
1992, and the case was docketed on November 5, 1992. The
veteran has been represented throughout his appeal by the
Department of Veterans Service, Georgia.
REMAND
The RO advised the veteran, in a supplemental statement of
the case of April 7, 1992, that since his service-connected
spinal condition was increased to 40 percent by prior rating
decision, that issue had been removed from his appeal as it
was considered a grant of benefits sought on appeal. He was
further advised that if he still disagreed with the
increased evaluation assigned, he should advise the office
within 60 days of his desire to continue the appeal on that
issue. Otherwise, only the remaining issues would be
forwarded to the Board for review.
The RO cannot assume that the veteran is satisfied with the
decision made on his case unless he presents a positive
statement to that effect. The burden is not on the veteran
to affirmatively state that he is satisfied with the grant
of 40 percent when he completed an appeal for an increased
rating which would encompass all evaluations up to 100
percent. In the absence of a statement from the appellant
accepting the increased evaluation as a complete resolution
of his claim, the RO may not treat the issue as withdrawn.
In this case, the appellant has not stated his agreement
with the 40 percent rating currently assigned. Therefore,
the RO must continue to develop this issue for appeal to the
Board.
The veteran is currently rated under Diagnostic Code 5293 of
38 C.F.R. Part 4 (1991) providing a 40 percent evaluation
for severe intervertebral disc syndrome with recurring
attacks with intermittent relief. A 60 percent rating will
be assigned where the condition is pronounced with
persistent symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to
site of diseased disc, little intermittent relief. In this
case, we note that there have been consistent complaints of
right radiculopathy and, additionally, the veteran has also
complained of pain radiating down the left leg. However,
both of the previous VA examinations afforded him were
limited to orthopedic findings and did not include any
specific neurological diagnosis. Most recently, the veteran
was seen by a neurosurgeon at the VA Medical Center (VAMC),
Decatur, Georgia. In January 1992 when the neurosurgeon
noted a history of recurrent neurogenic claudication and
requested that the veteran undergo magnetic resonance
imaging. The current record does not include a report of
the magnetic resonance imaging.
The Board has also notes that the veteran in a December 1,
1991 letter stated he was going to vocational
rehabilitation. The Board believes that the Chapter 31
folder should be added to the file. Accordingly, pursuant
to the above discussion and in accordance with the
provisions of 38 U.S.C.A. § 5107(a) (West 1991), which
mandate that we assist the veteran in the prosecution of his
claim, appellate action is deferred and the case is REMANDED
for the following action:
1. The RO should obtain the results of
magnetic resonance imaging test of the
veteran if that has been performed from the
VAMC, Decatur, Georgia. All the veteran's
outpatient treatment records subsequent to
those already on file should also be obtained
from that facility.
2. The veteran should be scheduled for a
orthopedic and neurological examination for
the purpose of determining the residuals of
his service-connected low back disorder,
including the presence of radiculopathy.
Examination of the right heel fracture and
right elbow should also be performed by an
orthopedist who should state whether there is
any pathological basis for any complaints of
pain or tenderness or other subjective
complaints in either area. Any limitation of
motion of the elbow should be set forth and
the examiner should state the pathological
reason for such limitation(s). The claims
file should be made available to the examiner
in connection with his/her study of the case,
and he/she should obtain any additional
testing that he/she deems necessary.
3. The veteran's Chapter 31 folder should be
associated with the claims folder.
When this development has been completed, the case should
again be reviewed by the RO on the basis of the additional
evidence obtained. If adverse action is continued, both the
veteran and his representative should be furnished a
supplemental statement of the case and be given an
opportunity to respond thereto before the records are
returned to this Board for further appellate review.
Appellate action on the other issues is deferred pending the
requested development. The Board does not intimate any
opinion at this time, nor is the veteran required to take
any action until he is notified.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
G. H. SHUFELT E. M. KRENZER
38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).